The OiNK Fallout: Should Its Ex-Users Be Watching Their Backs?

oink150gj9.jpgOnce the OiNK news broke, Jess got a request from his pal Mark Pytlik: “hey, if you havent already, you guys seriously need to talk to an internet copyright lawyer and figure out how much danger oink’s userbase is actually in right now. there are a ton of people bricking themselves out there and no sites or blogs seem to have much in the way of reliable information as far as that stuff goes.” Informed speculation? On the Internet? That’s such an anomalous occurrence that I had to track down a couple of legal types, and asked them how much OiNK’s now-former-users should be worrying about the possibility of their being prosecuted.

First, I chatted with an American intellectual property litigator who asked to remain anonymous, and asked him basically the same question posed by Pytlik:

They should be very, very scared. There are at least two reasons why this is not just your average, everyday, run-of-the-mill file sharing copyright infringement: this involves music that has not yet been commercially released, and money changed hands.

Because the music has not yet been commercially released, as a practical matter, the fair use defense effectively disappears. The leading case involved The Nation beating Harper & Row to press by publishing merely “between 300 and 400 words” of President’s Ford’s memoirs; the Supreme Court held that “The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right.” Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 548-49 (1985). “First publication is inherently different from other [exclusive copyright] rights in that only one person can be the first publisher;… the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced ‘sharing’ of the first publication right … is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts.” Id. at 553.

That fact also makes it criminal infringement, because it is “the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.” 17 U.S.C. § 506(a)(1)(C). (A “‘work being prepared for commercial distribution’ means … a musical work … or a sound recording, if, at the time of unauthorized distribution (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not been commercially distributed.” 17 U.S.C. § 506(a)(3)(A).) Of course, it’s also criminal because “the infringement was committed … for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a)(1)(A).

Prison terms for this stuff run up to 3-5 years for first offenses, 10 years for repeats. 18 U.S.C. § 2319(a), (c).

Yipes! As a follow-up, I asked two questions: Whether or not it was likely for prosecution to occur in the US, and whether or not the idea that any money that changed hands was donated–as opposed to the fees being a membership requirement–made a difference as far as “commercial distribution” goes:

The legal issue of what constitutes infringement in the US stays the same–there still has to be an infringing act in the US, or importation into the US. There are probably differences among the protections that US, UK, Netherlands, and EU law afford to subscriber information, but unfortunately, I don’t know the other countries’ law, so I don’t know whether those differences are material.

As far as money goes, remember that “commercial advantage or private financial gain” can include the benefits of barter and the like. So the fact that, in your [description of OiNK's ratio rules], “they had to assist in infringement in order to keep infringing” might be enough.

Ah, those ratio requirements–they’ll always get you.

Later, I had a quick IM exchange on the subject with MCBarrister, a Washington-based attorney with a background in IP and Internet law:

mauraidolator: So basically I am curious as to whether or not you think it’s likely that authorities in the US will try to go after American users of OiNK; there’s a threatening message on the front page of the site right now, and the freaking-out has commenced, as you might imagine.
MCBarrister: I think it depends on how quickly the RIAA gets its hands on any of the server logs. That’s partly facetious, but I don’t see the U.S. Department of Justice using its resources right now for criminal investigations of copyright infringement. The overseas raids were criminal matters–I don’t expect the same here. Plus, there’s an interesting issue of whether the UK and Dutch authorities would share the information with a private party. There are long-running debates over data treatment and security between the US and EU.
But if RIAA does get the logs and data, then there will be hell to pay for anyone who used credit cards [to donate]; those who maintained membership via upload will be a little harder to trace because you’d have to follow the IP addresses, and ISPs are not always willing to hand over their customers without court orders
mauraidolator: i’m pretty sure that the donations were done via PayPal.
MCBarrister: Hrmmm. PayPal is owned by eBay, which has pretty liberal policies about helping IP rights owners. I think it would still take a court order, but PayPal / eBay would be more likely to hand over personally identifying information that universities have proven more unwilling to give.
mauraidolator: What is interesting to me is the rough estimates of where the users came from — I’ve read that the US-based membership of the site was as high as 50%, even though the site was located in the UK.
MCBarrister: It’s not that surprising, depending on the content. I graduated from college before there was a graphical Internet, so I never really participated in these activities–but I have a rough sense that lots of US-based university students were playing since they have access to the best net connections around. My cable modem would choke on the kind of uploading necessary to support what I would want back down, assuming I had anything that was of value to the network in my vinyl rips.
mauraidolator: same here
MCBarrister: My bottom line–there should be some level of fear, but the action is going to be from the RIAA (again), not the feds, unless a new US Attorney General (once confirmed) has a real passion for prosecuting IP violations.
mauraidolator: Has there been any word on his attitude towards IP violations yet?
MCBarrister: I haven’t noticed–the mainstream coverage has focused on his willingness to back the administration’s claims of independence from the rule of law when it affects them personally, and a short time searching on Google turns up nothing more relevant.

So, there you have it. And if the new US Attorney General is excited by the idea of going after illegal downloaders? Well, look on the bright side, ex-OiNKers: There could always be another terrorist attack! That would certainly tie him up for a while.

  • markp

    Wow, you guys are more efficient than the Cleveland Police. Thanks dudes.

  • The Van Buren Boys

    Am I the only one out there who’s enjoying the whole Oink debacle a bit too much? The site should have been shut down a while ago. Downloading a couple songs off of a crappy album is one thing. But it’s a whole other thing to illegally release an album a couple months early while accepting “donations”. That’s not cool as far as I’m concerned.

  • Anonymous

    Nice article.

    But there are a few major issues that seem to have been forgotten.

    a) OiNK was in no way a pay site. Donating did not free you from the ratio requirements, you had to upload as much as anyone else. All donating got you was that it lifted the requirement to log in to the website once every 6 weeks, and you also got access to some advanced search features. And a nice star by your username.

    b) I think it’s wrong to say OiNK ‘specialised’ in pre-releases. Yes, it probably was the best place to get pre releases, but I’d say pre-releases accounted for much less than 1% of the material on OiNK.

    As an occasional (ex) OiNK user, I have to say I’m pretty concerned, but I’d say ‘very very scared’ would be an over the top reaction unless you were a major seeder, or regularly contributed to the pre-release stuff.

  • Maura Johnston
  • bnb614

    What is the liability for downloaders vs uploaders? Seems like uploading would get you in more trouble than downloading.

    I know some people that had memberships at one time a few years ago. They had no intention of uploading and/or couldn’t get the uploading to work through the firewall, so they just downloaded until their membership was cancelled.

  • Labtheque

    Until more information comes, I’m just going to flip out for a bit.

  • ragandboneshop

    Nobody else was confused by this? “there are a ton of people bricking themselves out there”

    Bricking themselves?

  • Weezy F Baby

    @kfuture: that’s what i’m thinking. i’m seeing them going after the release groups first. but who knows. ugh.

  • Anonymous

    @Labtheque: yup.

    but it seems that they would (and should?) go after the people who originally seeded pre-release music and pirated software. after that maybe the people who have uploaded/downloaded ridiculously large amounts of data via the tracker.

    i like to think that they would selectively target certain members, but they could just pick a random sample to prosecute.

  • Jess Harvell

    @ragandboneshop: a polite way of saying “messing ones pants.”

  • ragandboneshop

    Thank you! Now I feel like less of a cob nobbler.

  • drjimmy11

    if i felt like doing a bit of googling, i could find my comment on an “oink is great lol!!1!1!1″ thread from c. 6 months ago that said something like:

    “wow this is awesome! just like every other torrent site in the world, except you have to get an invite and then give them your personal information for when the RIAA inevitably busts them.”

  • Anonymous

    I’m trying to reach the Dutch privacy organization ([]) responsible for protecting user date like this. Will tell you as soon as I did.

    Oink’s Dutch hosting provider though told me yesterday that users don’t have to worry much. He claims the arrestation of the Oink admin is the sole thing they were after: []

  • LikeVid

    Well I never used oInk, but that was because after hearing about how it was invite only, I lost interest. Then I got an invitation but when I signed up it had a long arrogant diatribe about how they pride quality and how they’re anal about always maintaining a 100%+ ratio at all times and that they only accept music files that are uber high data rates. I’m one of those people who really doesn’t care about the quality, as long as it doesn’t have hissing and scratches – I can listen to it (maybe I’m partially tone-deaf or maybe I have crappy headphones) but I really couldn’t care less about a site that’s purely intended for music purists who fuss and cry at the sight (err sound) of a slight hiss in the background. The entire oink system seemed messed up to begin with, now I’m quite thankful that I never used it or signed up for it.

    I don’t think they’ll after end users, but then again the people using oink were most likely the bulk-quantity downloaders that most hurt the industry. I really hope they don’t go after them, but to be honest – if I was to advise the RIAA – I would highly recommend them to use the database and go after the users because it’s a gold mine, and they could create some serious fear in heavy piraters. Make examples of them essentially..of course I hope they don’t do this – because I hate lawyers, but in terms of an RIAA attack – this is their golden ticket – they’ll of course screw it up.

  • Anonymous

    @LikeVid: I was a regular OiNK user and appreciated the quality of the site. I wouldn’t describe myself as a music purist but if a thing is worth doing it’s worth doing well and OiNK was very well done. Far from being “messed up to begin with” the OiNK site set high standards and maintained them. The quality of the site, together with the unrivalled choice and range of material, is what this regular user will miss most.

  • plus.medic

    Thank you for working on spreading more F.ear U.ncertainty and D.oubt. Until you do a little preliminary research beyond the false information provided by the BBC I suggest you butt out of reporting on this.

    First and foremost, OiNK was not at any point in time a Pay/Subscription based site. The website was based on an invitation system. Earning invitations cost no money. Staying a member required no money. People who did donate did not gain any real advantage over other users when it came to downloading material. Donations were related to SERVER COSTS ONLY, and were not understood to be pocketed by the Admin (this remains to be investigated of course.) OiNK was a hefty site and supporting thousands of torrents and over 150,000 users takes a lot of power, which takes a lot of money. OiNK was a community.

    People shitting bricks right now about the IFPI/BPI page put up on the OiNK.CD domain should relax. Although the take down of OiNK may be larger scale than previous sites going the same route, no users have been openly prosecuted in the past. Couple this with the fact that there was no RIAA involvement in the takedown and you Americans can probably be breathing a little easier. Your chances or prosecution are so remote it’s not worth sweating over.

    I’d also like to clear up this intense focus on pre-release material. OiNK is not the primary source for pre-releases, The Scene is, and will continue to be. Also, OiNK’s focus was not simply pre-release material (there are many, many torrent sites, ftp sites and usenet groups dedicated to this), but covered pretty much any commercial material available. It’s absurd for IFPI/BPI to be making the claims they are.

    I hope this post informed you a little bit better than these so called news outlets have thus far…but when do they ever give the story to you straight?

  • LikeVid

    Thanks for the incite Reygan, but my musical taste is a little different then most as I really can’t think of any 1 artist that I would download an entire album of. I usually only like 1 or 2 (which is rare for me) songs from an album for me it’s quite simple to find the songs – in a process that I won’t explain here because of legal repercussions of admitting to anything.. but I’m pleased with the quality of music I’m able to ‘obtain’ for free. Again I’ve never hand any problems getting the songs that I want, with exception to some really obscure songs that required some searching..songs that Oink would definately not have had (because Oink’s weakness in terms of availability is the limitation of choice amongst its users..and if you’re not looking for something mainstream, it’s going to be difficult to get – considering that torrents are dependent on seeders, and less popular content is not going to get as many seeders.

    What I’d like to know is how did they verify the quality of music being shared on the tracker?

  • Anonymous

    From IRC chat with Oink’s admin:

    Yawg> did you anticipate a raid in the past? Did you take any precautions regarding site design and logs and whatnot to protect the community?
    OiNK> the logs we store aren’t enough to inciminate users

    Maybe not definitive, but it’s hopeful.

  • Trackback

    There’s a curious attempt to sound reassuring in OiNK arrestee Alan Ellis’ interview with ZeroPaid:the logs we store aren’t enough to incriminate usersThis, of course, is the same Ellis who told the Telegraph that he didn’t believe OiNK did anything illegal in the first place.